Insights

“LISI constantly strives to expand the services we make available to our members. For the first time, LISI is providing a PowerPoint deck developed by long-time LISI commentator Jeff Scroggin titled “The Looming Possibility of Tax Reform.” The slides are provided in an open format that allows members to add, change, update or delete the materials. Included in the materials are detailed and informative notes to provide insights to the presentations.

John J. “Jeff” Scroggin holds a B.S.B.A. (accounting), J.D. and LL.M (tax) from the University of Florida and serves as a member of the Board of Trustees of the Law Center Association at the University of Florida Levin College of Law. He is a founding member of the Board of Trustees of the University of Florida Tax Institute. Jeff was Founding Editor of the NAEPC Journal of Estate and Tax Planning from 2006-2011 and served on the NAEPC Board of Directors from 2002 to 2010. Jeff is the author of over 260 published articles on tax, business and estate planning issues and is a nationally recognized speaker. Jeff has been quoted extensively in the media, including in the Wall Street Journal, Forbes magazine, the New York Times, Fortune magazine, Kiplinger’s, Money, Smart Money, the New York Times International Herald Tribune, the Chicago Tribune, the South China Post, the LA Times, and the Miami Herald.

EXECUTIVE SUMMARY:

On September 27th the United Framework for Fixing our Broken Tax Code (the Plan”) was released. Since the Plan was released there has been continuous speculation and disagreement about the final terms of any tax reform. The mainstream media has offered wide (and often divergent) projections on the final provisions of the Plan, the impact of the Plan on taxpayers and the […]

The Florida legislature recently passed legislation designed to enable individuals to effectively plan for the management of their digital assets in the event of incapacity or death. The Florida Fiduciary Access to Digital Assets Act, which went into effect on July 1, 2016, has two main purposes: (1) vest fiduciaries (e.g., personal representatives, trustees, and attorneys-in-fact) with the authority to access, control, or copy digital assets and accounts and (2) provide custodians of digital assets and electronic communications the legal authority needed to interact with fiduciaries of their users while granting custodians immunity from liability for acts or omissions performed in good faith compliance with the Act.

A quick review of some vocabulary may help. A “digital asset” is an electronic record in which an individual (the “user”) has a right or interest. § 740.002(9), Fla. Stat. This term does not include an underlying asset or liability unless the asset or liability is itself an electronic record. Id. A “custodian” is the entity that carries, maintains, processes, receives, or stores a digital asset of a user (e.g., Facebook, Google, LinkedIn, etc.). § 740.002(7), Fla. Stat. An “online tool” is an electronic service provided by a custodian which allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person (e.g., Facebook’s Legacy Contact or Google’s Inactive Account Manager). § 740.002(16), Fla. Stat.

The Act divides digital assets into two categories and applies different default rules for the disclosure of each type of asset. Generally, a user must expressly authorize a fiduciary (in a will, trust, power of attorney, online tool, or other record) to be […]

Have you accepted the honor and privilege of acting as trustee for a family or company trust? If so, you are likely aware of the many duties attendant to your role as trustee and the powers which enable you to carry out those duties. Specifically, as a trustee you are the protector of the trust assets and entrusted to carry out the intent of the settlor, whatever that may be. As such, you will likely be called upon to carry out tasks which are outside the scope of your own knowledge and expertise, requiring you to hire expert professionals – including attorneys. Generally, a trustee is empowered by Florida law (or directly by the trust instrument) to use trust assets to pay the costs and fees generated by hiring attorneys who render services to the trustee on behalf of the trust. Questions arise, however, when that attorney has been hired to defend against allegations brought against the trustee by beneficiaries of the trust. Naturally, a conflict presents itself when a beneficiary has alleged wrongdoing against a trustee but which such trustee is empowered to use some portion of that beneficiaries’ interest in the trust assets to defend against the beneficiaries’ allegations.

Florida law, however, has long recognized this conflict and has attempted to reconcile the trustee’s inherent power to utilize trust assets with beneficiaries’ right to be protected against malicious or negligent trustees. Along the way, Florida enacted Florida Statutes, § 736.0802(10), controlling a trustee’s ability to use trust assets to pay the attorney’s fees incurred by the trustee. Since 2008, § 736.0802(10), entitled Duty of Loyalty, has provided guidance regarding a trustee’s payment of attorney’s fees and costs associated with legal […]

The answer to the title question is not as clear as you think, and even many attorneys get this wrong. So, what is the answer?

The starting point is the Florida Constitution. In general, Article X, Section 4 of the Florida Constitution states that if you live in municipality (i.e., a city or town), your residences is fully protected so long as you live on less than one-half acre. If you live outside of a city or town in an unincorporated area, your residences is fully protected so long as you live on less than 160 acres. This protection is determined without regard to the value of the home. To illustrate, if we compare properties within a municipality, a $3,000,000 beachfront residence on a half-acre would be fully protected, but a $300,000 inland residence on a full acre would only be partially protected. When a residence exceeds the acreage limitation, there are two methods courts use to allow creditors to collect. First, if the property is divisible, courts will partition the property, and the portion in excess of acreage limit will be used to pay the creditor. Second, if the property is not legally divisible, courts will order a sale of the entire property and division of the proceeds between the owner and creditor.

In Duval County, determining the extent of protection is a bit complicated. In 1968, all of Duval County (except for Jacksonville Beach, Atlantic Beach, Neptune Beach, and Baldwin) was consolidated into the City of Jacksonville. As a result of this consolidation, all of Duval County is now within a municipality. So, does that mean that the one-half acre homestead limitation applies to all of Duval County? Fortunately for homeowners, […]

At Purcell, Flanagan, Hay & Greene, P.A., our attorneys have devoted their careers to meeting the needs of high net worth individuals and business owners. We are a boutique firm that focuses on a few specific areas of law, including estate planning, business law, probate law, elder law, trust administration, asset protection, guardianship, tax, and litigation. We have three offices located in Jacksonville, Ponte Vedra Beach, and Amelia Island, Florida. Our attorneys are licensed to practice in Florida, Massachusetts, Oklahoma, and Texas.